© 2001-2002 Henrik Spang-Hanssen
hssph "at" yahoo "dot" com
By Henrik Spang-Hanssen [FN 1]
Translation of article on page 321-328 in Kritisk Juss [Norwegian Law Journal "Critical Law"] No. 3-4/2001, Norway, ISSN 0804-7375
In the last couple of years a lot of court decisions have dealt with the issue of filtering and blocking the contents of websites. Furthermore has several initiatives been taken to legislate on the contents of websites. This article will also mentioned a few of these and make some comments.
On May 22nd 2000 the Paris Tribunal de Grande Instance made the following decision: "We order the Company Yahoo! Inc. to take all necessary measures to dissuade and render impossible any access via Yahooo.com to the Nazi artifact auction service and to any other site or service that may be construed as constitution an apology for Nizism or a contesting of Nazi crimes." [FN 3] At the same time the court ordered the company Yahoo! France to notify all surfers visiting Yahoo fr. before using any links, which might give access to continue search on Yahoo.com, to refrain from looking at sites that was illegal by French law, and that the surfer otherwise would be indicted. In a decision of November 20th 2000 [FN 4] in which the same court stuck to its order of May 22nd, the court noticed that Yahoo! France had declared to have fulfilled the order of May 22nd, whereas Yahoo! Inc. meanwhile had claimed there was no technical solution that would make it possible for that company to fulfill the order of May 22nd. Therefore the court had appointed a panel of three experts to give the court advice about possible technical solutions, which the court could demand Yahoo! Inc. to use to fulfill the order of May 22nd. The court has in its decision of November 20th 2000 made reference to this expert-rapport, which is written in French, a language at least one of the experts cannot speak or read. The later fact made basis for Yahoo! Inc. in its writ for Declaratory Relief of December 21st 2000 in the below mentioned American lawsuit to claim that the expert-rapport not could have been given by American Vinton Cerf, who later in big letters have criticized the French decisions. [FN 5] Another of the three experts, an Englishman, has also criticized the decision and pointed out, that the theme of questions from the French court was very limited and prevented the experts to make vital information and comments. These two experts has later in press-statements remarked, that it is not possible to use geographic locations of users as basis for filtering as required by the French court; and that there is several ways users can go beyond filters. [FN 6] On June 7th 2001 the federal district court, San Jose Division, in Silicon Valley - the heart of the computer technology environment - decided that Yahoo!'s French opponent had failed to make the "compelling case" necessary to rebut the presumption that jurisdiction was reasonable and thus no convincing arguments so as the American court would have to dismiss the case. [FN 7] That decision also dealt with the question as to whether the court could use the American Specific Personal Jurisdiction rule to call into an American court a non-resident, who had obtained a French court order in its favor - including the question of whether the American "effect test" could be used, as this test in overall relates to tort cases. [FN 8] The November 7th 2001 decision - Conflict between nations On November 7th 2001 the same federal district court made the following decision that was appealed on December 4th 2001 to the Ninth Federal Circuit: "Yahoo! Seeks a declaration from this Court that the First Amendment precludes enforcement within the United States of a French order intended to regulate the content of its speech over the Internet. Yahoo! Has shown that the French order is valid under the laws of France, that it may be enforced with retroactive penalties, and that the ongoing possibility of its enforcement in the United States chills Yahoo!'s First Amendments rights. Yahoo! Also has shown that an actual controversy exists and that the threat to its constitutional rights is real and immediate. Defendants have failed to show the existence of a genuine issue of material fact or to identify any such issue the existence of which could be shown through further discovery. Accordingly, the motion for summary judgment will be granted." [FN 9] The district judge initiatively remarked that the American case presented novel and important issues arising from the global reach of the Internet; and pointed out, that the case was "not about the moral acceptability of promoting the symbols or propaganda of Nazism. Nor was the case about the right of France or any other nation to determine its own law and social policies. Rather, the issue was whether it was consistent with the American Constitution and American laws "for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation." The American case had to be decided in accordance with the Constitution and laws of United States. The district court pointed out that Yahoo! Inc. had a right to achieve a court decision, because Yahoo! did not know whether its efforts to date had met the French Court's mandate. Further, the American court found the French order was too general and imprecise to survive the strict scrutiny required by the First Amendment. Next the court discussed the question of abstention that is 'an appropriate remedy for international forum-shopping." The judge pointed out, that Yahoo! did not attempt to relitigate or disturb the French court's applications of French law or its orders with respect to Yahoo!'s conduct in France. The American judge held a United States court was best situated to determine the application of the United States Constitution to the facts presented. Thus there was no basis for abstention. "United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests What makes this case uniquely challenging is that the Internet in effect allows one to speak in more than one place at the same time." The court could not enforce a foreign order that violated "the protections of the U.S. constitution by chilling protected speech that occurs simultaneously within our borders," and remarked the factual question of whether Yahoo! possessed the technology to comply with the French order was immaterial. The case will probably end up in the U.S. Supreme Court. The American lawyer for the French defendant stated after the district courts decision that "So far we have had the French parties winning in France and the United States parties winning in the U.S., which is a sterile exercise." The case is in no way extraordinary. In year 2000 a American court issued a similar exterritorial court order as the French court did. A Canadian had November 1999 in accordance with Canadian law made an on-line tv-channel. On its website users before being given access to tv-programs had to type a Canadian zip-code and declare that the user was located in Canada. Nevertheless, the American court issued an order demanding the website to be removed as the website did not exclude Americans from access to the website, because Americans only had to give a false Canadian zip code and declaration. [FN 10] Filters- and Blocking-technology The Third Federal Circuit court remarked in the Reno-4 case that as of June 2000 that is was 'essential to note that under current technology, Web publishers cannot "prevent [their site's] content from entering any geographic community"' or "modify the content of its site so as to restrict different geographic communities to access of only certain portions of their site." [FN 11] The case, which was in the U.S. Supreme Court on November 28 2001, [FN 12] deals with the "Child Online Protection Act," [FN 13] which the Third Circuit declared unconstitutional, because the act would bar adults from material by requiring verification, whereby adults without e.g. a required credit card would be denied access. On basis of the global nature of the Internet plaintiff in the case claimed it would be unfair to demand of website operators that they organize content so it would fulfill the laws of every community where the content would be seen. [FN 14] Violators of the statute can be fined up to $50,000 and 6 six months prison if a person or entity knowingly and with knowledge of the character of the material, interstate or foreign commerce by means of the World Wide Web, making any communication for commercial [FN 15] purposes that is available to any minor and that includes any material that is harmful to minors (persons under 17). "Harmful to minors" means material taken as a whole lacks serious, literary, artistic, political, or scientific value for minors. In a court meeting on November 2001 in the U.S. Supreme Court claimed the opponents to the statute that it treatments to transform the Internet from a dynamic media to one only for children. In the same meeting was the question of whether the statute contains a federal community standard, because the Supreme Court in the 1970'ties outlined such a standard used to split cases dealing with obscene or not. If the Court does not find that the statute clearly contain a federal community standard the statute will probably be found unconstitutional, because the statute otherwise would make it possible for each state to set out a local standard, which would violate the First Amendment. At the same time another case is pending in U.S. between the same parties, [FN 16] where the same plaintiff claims a the later passed "Children's Internet Protection Act" [FN 17] also is unconstitutional. The law sets out criteria's for what content has to be blocked by American libraries. For the use in this suit a researcher and system-administrator from Harvard University has made an expert rapport of October 2001 dealing with the possibilities for blocking web sites by use of Internet filter applications. The conclusion of report is, that such applications configures for blocking certain categories of Internet content inevitably also will block content, which is not covered by the statutes criterias. Further, the expert points out there are several way of bypass the blocking thus making the blocking non-effective. This is a result of the way the Internet is technical constructed. [FN 18] It is worth mentioning that the French judge in the Yahoo case on July 12th 2001 in a case against Front14.org rejected French Internet Service Providers (ISP) could be ordered to filter Internet content from a portal originally located in Alaska and where a smaller part of websites presumably was violating French law. The French ISP's claimed amongst others that under EU-law on e-commerce it was not legal for ISP's to monitor Internet traffic, and the portal used a system of subdirectories, which made it possible easy to change the sites' URL-addresses; and that the ISP's did not wanted the role as police for the Internet. If the French government wished the Internet to be filtered, it had to be a task for the French police. The judge requested the plaintiff to make a specified list of websites that violated French anti-racist law. A French top prosecutor stated in a court meeting on October 2nd 2001 that in his opinion of French law it was not possible to demand ISP's to filter websites, which holding the court later agreed to and dismissed the ISP's. The decision is not appealed by the plaintiff as the Front14.org website was closed by hackers. [FN 19] Evaluation It is the computer technology that has created the new situation, not legal rules, that was made before the invention of international computer networks, which allow worldwide access to information and business possible and is build to disregard any national borders and prevent any hindering. When dealing with the see or air it is a fact that a ship or airplane cannot be everywhere at the same time. Otherwise with Internet websites that can be looked upon from many places at the same time. This possibility makes it -- opposite in the maritime law and aviation law -- difficult to determine where the "actual (legal) location" is. It is necessary to give time for and the issue thoroughly consideration. It is far from today to say, that sufficient research and knowledge on the legal aspects and the technology has been achieved. U.S. Justice Souter remarked in a case, [FN 20] that "we should be shy about saying the final word today about what will be accepted as reasonable tomorrow In my own ignorance I have to accept the real possibility that if we had to decide today just what the First Amendment should mean in cyberspace we would get it fundamentally wrong." [FN 21] In this respect it is essential to note that jurists who will legislate the Internet has to have technical knowledge, because otherwise the jurist, who has no technical education, gets special difficulties when going to deal with the edp-related facts, in a similar way he would require of himself in other areas of law. [FN 22] It is also very important that there must be continuity in the field on which legislation is made. As for law dealing with the Internet, that is a technical media, this is a problem as the lifespan of software and other computer technology is only six to ninth month, which is shorter than the time it takes to issue a bill and much shorter than the time it takes to arrange international conferences for making treaties. Thus one can fairly ask whether it is appropriate and constructive to incorporate issues related to the Internet and e-business in drafts to the convention "on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" that the Hague conference on Private International Law is preparing and which draft outside Internet issues is based on experiences from many decenniums. At this time, it was maybe wiser to keep away from Cyberspace and let time show in what direction the Internet and its technology moves, thus preventing to have to change the convention maybe even before it came into force - also in other important areas. Politicians and jurists often show lack of knowledge to the Internet. The European parliament has for example in November 2001 of privacy reasons voted for a proposal from the Commission that will require websites to offer users an opt-in choose before cookies are allowed. However, such a feature has been possible ever since the first cookie was implemented of L. Montulli [FN 23] - see his rapport about cookies, especially no. 4.3.2. "Rejecting Cookies". An instruction of how to avoid cookies had for many years been available on for example Earthlink.Net's "How do I set my browser so I can choose to accept or reject cookies?" [FN 24] What is it the politicians want now? That consumers can remove the cookie-feature? If so, then it is Netscape, Microsoft and other browser firms the politician should point their legislation at and demand them to make browsers not to accept cookies under no conditions. However this regime will remove the possibility for advertising revenue that sponsor a lot of the free offers given at different web sites and give problems for the users outside the E.U., where many nations accepts cookies as a condition to receive get the free offers. It would be much more proper if the E.U. would initiate an information campaign on TV telling its citizens about the present cookie function in browsers. The consumers are just as intelligent as they want to be in the situation and they always requiring to be treated as innocent or ignorant when they themselves has done something wrong. At this time there seems to be a beginning of a trend whereas the single persons consumer protection has to waiver for the majorities human rights, e.g. free speech. One can only hope the single consumer, who in practice often have no problem using the most advanced computer game, will be forced to learn that by login on to the Internet one has removed themselves from the local community's consumer protection and as a tourist has gone to a foreign nation, which most likely has a different rules and laws that have to be read - in stead of carelessly surfing the Internet and clicking links to new websites without reading the webpage's user conditions. This will imply that all nations citizens - both sellers and publishers as well as buyers and readers - can have equal rights in international computer networks, which then can function as the homogeny world wide unit it was construed to be. Otherwise, "if every jurisdiction in the world insisted on some form of filtering for its particular geographic territory, the World Wide Web would stop functioning." [FN 25] That is not to say, that there is not a need for legislation of the Internet in certain aspects. Most of the users and operators agree on that there is a need for - international - law against fraud and child pornography on the Internet because these issues involves trust to the Internet, and against Spam, hackers etc. which destroys the functionality and reliability of international computer networks, see European Council's Cybercrime Convention (ETS no. 185) which was available for signatures November 23rd 2001 and signed by 17 European nations, South Africa, Canada, U.S. and Japan. [FN 26] But even on these issues ought the legislators to take into serious consideration what the consequences their wish of criminalization will implement. At present time there is a heavy legal discussion in the U.S. on the reach of the passed antiterror act [FN 27] which the government claims allow the possibility of suing non-residents hackers and owners of websites containing child pornography in U.S., because 80 % of all Internet traffic -- on ground of the communications-system on the Internet -- passes many servers whereof the most are placed in U.S. For example goes most of the communication from members of AOL through the company's main server in Virginia, U.S. Shall this allow U.S. to become the police of the Internet just because of the panic after September 11th? Another example is a bill of November 21st from the government in Belarus that requires every web-page - not only website - to contain the following information: name of the publisher (company), the founder and the chef publisher, number of editions with date and time, full address for the company and registration number. Shall this nation have the right to determine the content of how websites are going to be made? Because a website when published on the Internet can be access everywhere, does the Belarus bill implement being a legislation for every website on the Internet. Since the content on each of the pages of a website can be changed independently does the Belarus bill implement the rules will have to fulfilled on every page. Thus the bill will in practice create problems and irritation to the users which receive webpages on small screens e.g. on Internet-mobilphones or handheld-PCs. Further will the users have to scroll through the bill-required information on every page. This is another example of politicians and legislators lack of knowledge of the technicality of the Internet and websites. All together this clearly shows that as for the Internet the reach of nations jurisdiction and jurisdiction-rules must be solved as the first issue - and internationally.
FN1 Henrik Spang-Hanssen got his Master Degree from Copenhagen University in 1980 and Danish Bar License in 1983. Since May 2000 researcher at Norwegian Research Center for Computers and Law, University of Oslo. Has written "Cyberspace Jurisdiction in U.S." based on research at Santa Clara and Stanford Universities in California in 1998-99.
FN2 Some facts are mentioned in a previous article in "The earthly chaos in websites - question of jurisdiction and net-censorship" on page 63-67 in Kritisk Juss [Norwegian Law Journal "Critical Law"] No. 1-2/2001, Norway, ISSN 0804-7375
FN3 English translation of the May 22nd 2000 decision is part of the Complaint in the American case. See http://www.cdt.org/speech/international/001221yahoocomplaint.pdf (visted August 7 2001).
FN4 English translation of the November 20th 2000 decision at www.cdt.org-speech-001120yahoofrance.pdf (visited March 16 2001). On May 28 2001 Yahoo! Inc. choose to redraw its appeal case in France.
FN5 Response from Vinton Cerf at www.legalis.net/jnet/decisions/respnsabilite/ord_tgi_paris_201100.htm (visted November 20 2000).
FN6 Laurie, Ben: An Expert's Apology in: www.apache-ssl.org/apology.html (visited August 31 2001).
FN7 Yahoo!, Inc. v. La Ligue Contre le Racisme et L'antisemitisme, 145 F.Supp.2d 1168 (N.D.Cal. June 2001).
FN8 Henrik Spang-Hanssen, Cyberspace Jurisdiction in the U.S. - The International Dimension of Due Process side 41, (CompLex 5/01, Unipub Forlag, 2001). Can also be freely downloaded from http://folk.uio.no/hssph.
FN9 Yahoo!, Inc. v. La Ligue Contre le Racisme et L'antisemitisme, 169 F.Supp.2d 1181 (N.D.Cal. November 2001).
FN10 20th Century Fox v iCraveTV, 2000 US Dist Lexis 1013 (WD Pa, 2000). FN11 American Civil Liberties Union v. Reno, 217 F.3d 162, 166 (3rd Circuit, Juni 2000).
FN12 Docket number 00-1293, Ashcroft v. American Civil Liberties Union.
FN13 Child Online Protection Act of October 1998 (COPA), 47 U.S.C. § 231.
FN14 1st Amendment protects sexual words and pictures that are indecent; opposite obscene.
FN15 One in 1997 of US Supreme Court unanimous partly rejected Act, the Communications Decency Act of 1996 (47 U.S.C. § 223(a)(1996) and 223(d)(1996), dealt also with chat rooms and websider made by nonprofit associations.
FN16 Multnomah County Public Library, Safersex.org. e. al. v. United States of America pending in E.D.Pa.
FN17 Children's Internet Protection Act of December 2001 (CIPA or CHIPA), 47 U.S.C. § 254.
FN18 Benjamin Edelman, Sites Blocked by Internet Filtering Programs in: http://cyber.law.harvard.edu/people/edelmann/pubs/aclu-101501.pdf (visited November 6 2001).
FN19 MacMillan, Robert (Newsbytes) Groups applaud Yahoo hate speech case, in: ComputerUser.com November 12th 2001, www.computeruser.com/clikit/printout/news/301665600005003520.html (visited November 12 2001).
FN20 Denver Area Educational Telecommunications Consortium, Inc. v FCC, 518 U.S. 727, 777 (U.S. 1996).
FN21 1st Amendment about free speech has in U.S. been used in many cases as an argument for the legality of the content on websites, however it also have its limits. In the 2nd Circuit case Universal Studios v. Eric Corley, docket no. 00-9185 (2nd Circuit, 28. Nov. 2001) had defendant on his website mentioned the code of one Norwegian teenager programmer made application "DeCSS", which the court named as the key to open electronic protections-codes on DVD's and thus giving the possibility of making illegal copies of digitalized movies e.g. via the Internet. Defendant argued that he only passed on information about the Norwegian's invention. The court held this was not protected by the 1st Amendment. The case is at http://laws.findlaw.com/2nd/009185.html (visited November 30 2001).
FN22 Danish Law Professor Mads Bryde Andersen, Förändres juristens arbetsmetoder? i Edb, lovgivningen og juristenes rolle: Nordisk årbok i rettsinformatikk 1990 page 116-117
FN23 L Montulli (Netscape Communications) and D. Kristol (Bell Laboratoriees, Lucent Technologies) HTTP State Management Mechanism, specially section 4.3.2 "Rejecting Cookies" and how to delete cookies on your own computer at (Februar 1997) http://www.cis.ohio-state.edu/cgi-bin/rfc/rfc2109.html (visited September 13 2001).
FN24 Earthlink Net All about Cookies of March 7 1998 in: http://home.earthlink.net/~cyberbill/cookies.htm. The instruction has not been updated from version 4 of Explorer and Netscape, but the handling of is the same. Earthlink Net is a American Internet Service Provider (visted September 13 2001).
FN25 Vinton Cerf, E-mail from Cerf Vinton to and quoted by Agence France-Presse in the article "Top Internet advisor criticizes French Yahoo! decision" of November 24 2000, 2000 WL 24767154 (Westlaw database AGFRP)
FN26 Original version in English at http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm (visited Nowember 20 2001).
FN27 "US Patriot Act", Uniting and Strengthening America by providing appropriate tools required to intercept and obstruct terrorism Act of October 26th 2001, 2001 PL 107-56 (HR 3162).
February 25, 2008